Cree v. Flores
| Decision Date | 08 October 1998 |
| Docket Number | No. 97-35305,97-35305 |
| Citation | 157 F.3d 762 |
| Parties | 98 Cal. Daily Op. Serv. 7682, 98 Daily Journal D.A.R. 10,657 Ronald CREE, Jr.; Dalton Cree; Jack Haggerty; Douglas Beebe; Joseph Yallup; Carl Boyle; Richard "Kip" Ramsey, dba Tiin-Ma Logging Co.; Tiin-Ma Logging Company; Wheeler Logging, Plaintiffs-Appellees, and Yakama Indian Nation, Plaintiff-Intervenor-Appellee, v. Juan FLORES; Mike Worlund; Keith Qunell, Defendants-Appellants. WHEELER LOGGING, Plaintiff-Appellee, and Yakama Indian Nation; Delbert Wheeler, Plaintiffs-Intervenors-Appellees, v. Annette SANDBERG; Mike Worlund, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Fronda Woods, Assistant Attorney General, Olympia, Washington, for defendants-appellants.
Tim Weaver, Cockrill & Weaver, Yakima, Washington, for plaintiffs-appellees Ronald Cree, Jr., et al. and plaintiff-intervenor-appellee Yakama Indian Nation.
Jack W. Fiander, White Swan, Washington, for plaintiff-appellee Wheeler Logging and plaintiff-intervenor-appellee Delbert Wheeler.
Stephanie L. Striffler, Special Counsel to Attorney General, Salem, Oregon, for amicus curiae State of Oregon.
Appeals from the United States District Court for the Eastern District of Washington; Alan A. McDonald, District Judge, Presiding. D.C. Nos. CV-89-00458-AAM, CV-92-03100-AAM.
Before: CANBY and TASHIMA, Circuit Judges, and TAKASUGI, District Judge. *
Defendants, various Washington State officials ("Defendants"), appeal the district court's grant of summary judgment in favor of the Yakama Indian Nation and individual Yakama Indians holding that the Treaty with the Yakamas ("Yakama Treaty" or "Treaty") exempts them from various Washington truck license and overweight permit fees. The Treaty clause in issue assures the Yakamas "the right, in common with citizens of the United States, to travel upon all public highways." Treaty with the Yakamas, Art. III, 12 Stat. 951, 953 (1855). 1 We hold that the district court did not err in interpreting the Yakama Treaty as exempting the Yakama Indians from the fees at issue. Accordingly, we affirm the judgment of the district court.
Washington law requires registration and licensing of trucks according to gross weight, higher fees being charged for greater weights. See RCW §§ 46.16.070, 46.16.135 (monthly tonnage licenses), 46.44.095 (temporary tonnage permits). Trucks owned by individual Indians have never been exempt from such license fees. Washington also requires log tolerance permits for certain overweight trucks along with payment of a fee. RCW §§ 46.44.047, 46.44.095 (temporary tonnage permit). Again, individual Indians have never been exempt from such fees. Under Washington law, violations of the weight licensing requirements may result in traffic infractions. RCW §§ 46.16.010, 46.16.135, 46.16.140, 46.16.145. Fees paid to the State of Washington (the "State") for truck registration, licensing, and log tolerance permits are credited to the state motor fund and used primarily for highway purposes. RCW §§ 46.68.030, 46.68.035. See generally Yakama Indian Nation v. Flores, 955 F.Supp. 1229, 1232-33 (E.D.Wash.1997).
Plaintiff-Intervenor Yakama Indian Nation (the "Yakama Nation" or "Nation") sells timber from lands held in trust by the United States for its own and its members' benefit. It enters into timber sales contracts with purchasers who must employ tribal members when possible. Individual Plaintiffs in both consolidated cases operate logging trucks that haul logs from tribal timber sales within reservation lands to off-reservation mills. Cree plaintiff Richard "Kip" Ramsey owns the Tiin-Ma Logging Company ("Tiin-Ma Logging") and began his logging business in 1978, becoming the first Indian logger to haul tribal timber off-reservation. The remaining Cree plaintiffs are employed as drivers for Tiin-Ma Logging and, with one exception, are enrolled members of the Yakama Nation. In the second consolidated case, Wheeler, Plaintiff-Intervenor Delbert Wheeler is the owner of Plaintiff Wheeler Logging and is an enrolled Yakama Indian who began his operations in 1987.
Defendants are state officers authorized to issue traffic citations for violations of State vehicle registration, licensing and permitting statutes. Plaintiffs brought suit after the officers issued traffic citations to Tiin-Ma Logging and Wheeler Logging drivers because their owners had refused to pay applicable tonnage licensing fees and had not obtained log tolerance permits for their trucks. Afterwards, the officers began issuing citations to the drivers for failing to possess proper registration. All of the state enforcement actions challenged in this case occurred outside the boundaries of the Yakama Indian Reservation.
Plaintiffs contend that the Yakama Treaty protects their right to haul tribal timber to off-reservation markets over state highways without restriction; therefore, that the State cannot impose licensing and permitting fees on logging trucks owned by the Nation or its members. They contend that Defendants have deprived them of their rights under the Treaty.
Cree Plaintiffs filed suit against the State and several of its officers on July 3, 1989. On June 1, 1991, the district court granted their motion for a preliminary injunction enjoining Defendants from issuing citations to Tiin-Ma Logging or its drivers for violations of the tonnage licenses under RCW § 46.16.070 and the log tolerance permits under RCW § 46.44.047. Wheeler Logging filed suit on September 8, 1992 and the district court subsequently issued a preliminary injunction similar to the Cree injunction. The district court consolidated the cases on March 6, 1993.
After the court ordered the individual Plaintiffs to show cause why their claims should not be dismissed under the Tax Injunction Act, 28 U.S.C. § 1341, the district court granted the Yakama Nation's motion to intervene as a party-plaintiff in both the Cree and Wheeler actions. It also dismissed the individual Plaintiffs' claims challenging the financial obligations under the truck licensing and permitting laws, holding that it lacked subject matter jurisdiction under the Tax Injunction Act. 2
In late 1994, the district court held that prior decisions regarding the Nation's fishing rights under Article III, paragraph 2, of the Treaty governed the meaning of the term "in common with" in the public highways clause, Article III, paragraph 1, of the Treaty. Cree v. Waterbury, 873 F.Supp. 404 (E.D.Wash.1994). Accordingly, it further held that, under the Treaty, the Yakama Nation and its members retained the right to travel the State's public highways without paying user fees while hauling tribal goods. Id.
Defendants appealed the district court's ruling on the Treaty interpretation issue and this court reversed. Cree v. Waterbury, 78 F.3d 1400, 1404 (9th Cir.1996). We held that the term "in common with" in the fishing right cases did not, by itself, define the nature of the public highways right. We directed the district court to undertake "[a] factual investigation into the historical context and the parties' intent at the time the Treaty was signed [in order to] determine the precise scope of the highway right." Id. We then remanded the case to the district court with instructions to "examine the Treaty language as a whole, the circumstances surrounding the Treaty, and the conduct of the parties since the Treaty was signed in order to interpret the scope of the highway right." Id.
On remand, the district court held an extensive evidentiary hearing on the issue of the intent of the parties to the Treaty. It considered the testimony of three expert witnesses, two Plaintiffs and two State employees, along with numerous exhibits. See Yakama Indian Nation, 955 F.Supp. at 1236.
Plaintiffs presented two expert witnesses. The first, William Yallup, a full-blood Yakama Indian, has deep ties to the Yakama Nation going back to those who were present when the Treaty was negotiated. For 25 years he has served on the Yakama Nation Executive Committee and from 1985-90, he served as its Director and Cultural Specialist. Mr. Yallup testified as to the meaning of the Treaty to the Yakamas. Id.
Plaintiffs also offered the testimony of Dr. Deward Walker, an anthropologist who is an expert in ethnology, the comparative interpretation of cultures, based on their history, structure and functioning. Dr. Walker has spent his entire career studying the culture of North American Indian tribes and has been working with the Yakama Nation since the 1950's. He has authored several publications about the Plateau Indians which relate to the Yakama. Id. at 1236-37.
Defendants presented the testimony of Dr. Kent Richards, a professor of history at Central Washington University. Dr. Richards is an expert on Isaac I. Stevens, the Territorial Governor of Washington at the time of the Treaty. Dr. Richards was asked to examine the Yakama Treaty in the context of United States Indian policy at the time it was negotiated--the mid 19th Century--and in the context of previous treaties. He was asked particularly to examine the public highways clause and how that clause was carried out and interpreted after the Treaty. Dr. Richards based his opinions almost exclusively on his review of written sources; he did not speak with any Yakama members. He relied upon primary sources generated by participants or observers at or near the time of Treaty negotiations. Id. at 1237.
On the basis of this extensive record, the district court examined the importance of the Treaty to the Yakamas, the historical context of the Treaty, the Treaty negotiations at the Walla Walla Council, and the actions of the parties since the...
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Case summaries.
...Diversity v. United States Bureau of Reclamation, 143 F.3d 515 (9th Cir. 1998), supra Part III.A.4. NATIVE AMERICAN ISSUES Cree v. Flores, 157 F.3d 762 (9th Cir. This case involved an appeal from two consolidated cases. Defendants appealed the district court's grant of summary judgment in f......